Is this a prediction or a secret that he wasn’t supposed to spill? On the one hand, rumors have been circulating about Kennedy’s impending retirement. Above the Law flagged one back in December:
A few months ago, I heard an intriguing rumor: Justice Anthony M. Kennedy, the pivotal “swing vote” on the U.S. Supreme Court, would announce his retirement in early 2018. It wouldn’t be effective until the end of the current Term, around late June 2018. But Justice Kennedy was said to be planning on this early announcement to avoid a “Merrick Garland” situation — i.e., to get his successor confirmed well before the 2018 midterm elections. This would also have the added benefit of reducing the likelihood of SCOTUS becoming a big issue in the 2018 midterm elections.
On the other hand, “Kennedy’s retiring” rumors have been circulating for at least the past five years. And Above the Law noted in that same post that there’s evidence that Kennedy isn’t taking the plunge — he’s already hired four clerks for the Fall 2018 term. That’s not a smoking gun that he intends to stay, as other justices have hired clerks for a future term and then decided to retire, but he’s not sending any public signals about leaving.
How about private signals, though? Here’s Heller, speaking at an event in Nevada last week:
“Kennedy is going to retire around sometime early summer,” Heller predicted in Las Vegas last week, according to audio of an event he spoke at that was obtained by POLITICO. “Which I’m hoping will get our base a little motivated because right now they’re not very motivated. But I think a new Supreme Court justice will get them motivated.”…
“Mike Lee from Utah is probably on that short list of the next Supreme Court justice in our courts,” Heller said during the Q-and-A session with the J. Reuben Clark Law Society in Las Vegas Friday.
It would make sense for Kennedy to retire this year *if* he cares about giving a Republican president maximum freedom in appointing his successor. Maybe he doesn’t. But if he does, naturally it’d be better to step down with the GOP in control of the White House and the Senate, before an unpredictable midterm election scrambles that. And as ATL noted, it would make sense for him to announce well in advance of the end of the spring term to give the White House and McConnell as much time as possible before November to confirm a replacement. If he waits until late June, he’s going to push the big confirmation showdown between Republicans and Democrats into fall, in the thick of midterm fever.
If Heller knows something, though, it’s curious that no one else on the Hill seems to be whispering about it. A SCOTUS retirement would be the hottest gossip in Washington; it’s impossible to believe that it wouldn’t leak instantly once it made it all the way to the Capitol. Yet Heller’s the only person who’s stirred this pot lately. Hmmm. His logic about the midterms is overblown too. It’s true that a Supreme Court vacancy would motivate Republicans by reminding them in a vivid way of why it’s important to retain control of the Senate, but arguably it would motivate Democrats more. Replacing moderate Anthony Kennedy with a more dogmatic conservative would mean that Trump had placed two solid right-wingers on the Court in less than two years as president, with potentially more to come depending on Ginsburg’s and Breyer’s health. The only way liberals are going to force Trump to pick Souter-esque “centrists” is by handing Schumer a majority with veto power over POTUS’s nominees.
But either way, there’s little chance that the midterms would affect a Kennedy vacancy even if it comes in late June. McConnell would still have six full months and 51 votes — hopefully — to get Trump’s nominee confirmed. (Senate vacancies could arise, of course, but if, say, John McCain steps down, Arizona’s Republican governor would appoint a successor temporarily.)
As for Mike Lee, that would be a dynamite pick, as pleasing to the right as the Gorsuch nomination was. And Lee might be one of the few doctrinaire conservatives capable of making it through a confirmation battle. In the abstract, he might be more right-wing than a Susan Collins or a Lisa Murkowski would prefer. But senators tend to be more forgiving of ideological disagreements when one of their own is nominated to a high office, and Collins and Murkowski would come under intense pressure not to Bork a qualified nominee with Democrats potentially poised to retake the Senate. I think Lee would be confirmed by no worse than a party-line vote — and potentially by a wider margin than that. After all, red-state Democrats up for reelection this fall will be in a terrible bind on how to vote on a Trump nominee. If they vote to confirm, their base will be enraged. If they vote to block, the Republican majority back home will be enraged. Presumably Schumer would wait to see if Republicans can muster 50 votes to confirm from their own ranks, then free Joe Manchin, Claire McCaskill, etc to vote however they like since it won’t matter to confirmation. But either way, the political pain that’ll be inflicted on them is another reason to cheer a Kennedy resignation sooner rather than later.
I don’t think Trump would nominate Lee, though. He did appear on Trump’s SCOTUS shortlist before the election but that was a sop to Utah voters, who were chilly towards Trump and flirting with voting for Evan McMullin instead. Nominating Lee would create the same sort of awkwardness for POTUS as his flirtation with Mitt Romney for Secretary of State did. Lee tried to block him from the nomination at the convention, then called on him to drop out after the “Access Hollywood” tape emerged. He never did get around to endorsing Trump. Is Trump going to spend weeks fielding questions about all of that when he has another 20+ qualified shortlisters to choose from? C’mon.